FEDERAL COURT OF AUSTRALIA Gao v The Official Trustee in Bankruptcy as Trustee of the Estate of Yu Jing Zhu [2002] FCA 1616 PENG YUAN GAO -v- THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE ESTATE OF YU JING ZHU V 830 of 2002 RYAN J 19 DECEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 830 of 2002 BETWEEN: PENG YUAN GAO Appellant AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE ESTATE OF YU JING ZHU Respondent JUDGE: RYAN J DATE OF ORDER: 19 DECEMBER 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appellant be referred to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance confined, in the first instance and until further referral by the Registrar, to: (a) explaining to the appellant the reasons for judgment of Sundberg J of 6 November 2002 and of Ryan J of this day; (b) indicating the grounds of appeal (if any) which can properly be argued on the hearing of the appeal; (c) advising the appellant whether leave is required to appeal from the order of Sundberg J of 6 November 2002 and, if so, preparing an application for such leave; (d) preparing an amended notice of appeal incorporating any grounds indicated pursuant to paragraph (b) of this Order. 2. The motion on notice dated 29 November 2002 be otherwise dismissed with costs; 3. The motion on notice dated 9 December 2002 be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 830 of 2002 BETWEEN: PENG YUAN GAO Appellant AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE ESTATE OF YU JING ZHU Respondent JUDGE: RYAN J DATE: 19 DECEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant has appealed to a Full Court of this Court from an order made by Sundberg J on 6 November 2002, dismissing with costs an application filed by the appellant on 16 September 2002. By that application, the appellant, who claims to be an unsecured creditor of the bankrupt estate of Yu Jing Zhu ("the Bankrupt"), sought the removal of the Trustee of the bankrupt's estate, ("the Trustee"), and a review of the Trustee's conduct in connection with a property at 168 Hansworth Street, Mulgrave ("the property"). The property had been sold by the Commonwealth Bank ("the Bank"), as mortgagee in possession for approximately $200,000 on 10 August 2002. That sale, the appellant contends, was at an undervalue. He had earlier unsuccessfully sought from Sundberg J an order that the Bank be joined as a respondent to his application. 2 By his notice of appeal filed on 27 November 2002 and a supplementary notice of appeal, the appellant has recited a large number of matters in the form of a chronological narrative. The grounds of appeal do not emerge clearly from those documents but it seems that the appellant is aggrieved by the Trustee's disclaimer, as he calls it, of the property which he says is the only "profitable" asset in the bankrupt's estate. He also complains of the subsequent sale of the property by the Bank at an alleged undervalue. As well, the appellant seeks to have set aside the order for costs made against him by Sundberg J. In addition he says that he should have been allowed an opportunity to cross-examine witnesses, including a Mr Bezemer, who, Sundberg J recited in his reasons of 6 November, "deposes that he is not aware of any basis or facts upon which the bankruptcy ought to be annulled". 3 In a related way, the appellant complains that the learned primary Judge failed to take into account evidence related to the subject matter of the proceeding and the gravity of the matters alleged by the appellant. It also appears that the appellant wishes to agitate again an allegation that the Trustee had been knowingly in breach of various duties imposed on him by the Bankruptcy Act 1966 (Cth). In that context, the appellant seems to contend that he should have been allowed to cross-examine the bankrupt herself and other witnesses with a view to demonstrating that the bankrupt's presentation of her own petition had been fraudulent. 4 A final group of complaints, which can be distilled with some difficulty from the notices of appeal, seems to assert that the appellant was denied natural justice in the hearing at first instance. There are two notices of motion presently before the Court. The first is in these terms; "In order to real matter before the Court would be effectually & completely determined & adjudicated, applicant desires for questioning witnesses as to evidences given by Trustee in the proceeding, and desires the Court appointed referral legal assistance from pro bono panel, and desires the hearing be tried before jury. ORDERS SOUGHT BY APPLICANT 1. In pursuance of order 14 rule 9 and order 27 rule 6 of Federal Court and Evidence Act 1995 as the case required, witnesses related to the evidences given to the proceeding may be questioned. 2. In pursuance of order 80 of Federal Court, applicant desires the Court appointed referral for legal assistance from pro bono panel for applicant's proceeding. 3. In pursuance of S30(3) of the Act, applicant desires the hearing be tried before jury." 5 The second notice of motion reads: "In order to real matter before the Court would be effectually & completely determined & adjudicated, applicant desires for adducing evidences in relation to the bankruptcy. ORDERS SOUGHT BY APPLICANT (1) In pursuance of order 54 rule 36 of the Federal Court applicant has leave to adduce evidence in relation to the bankruptcy in the appeal." 6 Order 14, rule 9 of the Rules of this Court provides a facility for a party to require the attendance for cross-examination of a person making an affidavit. Of its nature, that facility is primarily available in hearings at first instance where evidence is frequently taken on affidavit. Similarly, O 27 r 6, concerned with the issue of subpoenas, is directed primarily to procuring the giving of evidence in hearings at first instance. By s 27 of the Federal Court of Australia Act 1976 (Cth), a Full Court hearing an appeal has a discretion to receive further evidence. However, that discretion is generally only exercised when it is shown that the evidence could not, with reasonable diligence, have been adduced at the trial and it is reasonably clear that, if the evidence had been available at the trial, there would have been a different result; see eg, Orr v Holmes (1948) 76 CLR 632, at 635. 7 The discretion to which I have just referred is exclusively one for the Full Court hearing the appeal and I cannot anticipate it by requiring any deponent to attend for cross-examination or by granting the appellant leave to issue subpoenas in advance of consideration by the Full Court of his application to adduce further evidence. The appellant will have to comply with O 52 r 36 if he seeks to persuade the Full Court on the hearing of his appeal to permit him to adduce fresh evidence. 8 On the assumption that the appellant is without means and taking into account the other matters to which O 80 r 4 directs attention, I shall refer the appellant to the registrar for legal assistance. I shall make that referral on the basis that such assistance be limited in the first instance to explaining to the appellant the reasons for judgment of Sundberg J of 6 November 2002 and these reasons, indicating to the appellant the grounds of appeal, if any, which the legal practitioner considers can properly be pursued on the hearing of the appeal and preparing an amended notice of appeal containing those grounds. Mr Lhuede, Counsel for the respondent, has suggested that Sundberg J's order of 6 November 2002 was interlocutory, so that leave to appeal from it is required. That is a further matter to which I consider the pro bono practitioner should direct attention. 9 Section 40 of the Federal Court of Australia Act provides: "The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose, make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires." 10 That section, in my view, clearly contemplates a trial by jury at first instance of the suit or an issue of fact raised by a matter before the Court. Of its nature, an appeal from an order at first instance cannot be determined by a jury. The appellant claims that an application for trial by jury was made to Sundberg J. If that was so his Honour evidently found it unnecessary to deal with the request because of his view that the application should be summarily dismissed. However, if his appeal succeeds to the extent of the Full Court's ordering a further hearing on any issue, the appellant can then make application under s 40, either to the Full Court or to the Judge conducting it for the whole of the further hearing or the trial of some particular factual issue to be conducted before a jury. 11 For these reasons, the only order that I can appropriately make today is the one which I have already foreshadowed, referring the appellant to the Registrar for referral under O 80 r 4. The motions on notice, respectively dated 29 November and 9 December 2002, will otherwise be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 19 December 2002 The appellant appeared in person. Counsel for the Respondent: Mr M Lhuede Solicitor for the Respondent: Gadens Lawyers Date of Hearing: 19 December 2002 Date of Judgment: 19 December 2002